Book Review - Intellectual Property Law: Copyright, Patents, Trade-marks, 2nd Ed.

Hashim Ghazi is a JD candidate at Osgoode Hall Law School.

Professor David Vaver’s Intellectual Property Law: Copyright, Patents, Trade-Marks, 2nd ed., takes up where the first edition left off, providing a complete and informative review of intellectual property law in Canada. David Vaver is the Professor of IP Law at Osgoode Hall Law School and a member of the IP Osgoode Advisory Board.

In 1997, Vaver released the first edition, which was Canada’s first text that analyses all three of these fields in one volume. The first edition has been one of the most favoured texts on the subject, being a source of referral on Canadian intellectual property law by judges, policymakers, lawyers, academics and students both nationally and internationally. Given the fundamental changes seen in both domestic and international IP law over the last fifteen years, an updated version was in demand; the current edition not only takes into account these fundamental changes, but also embarks on the social, economic and technological environments in which intellectual property law operates. This text raises the bar previously set by the first edition, and will maintain its place as a cornerstone to the study of IP law in Canada.

The structure of the text is similar to its predecessor, but the contents are more in-depth, boasting a page count double that of the first. However, Vaver maintains the brief and non-technical language seen in the first edition, illustrating his main points in terms that are easy to comprehend for those that are new to the subject, yet detailed enough for those with a wealth of experience in the field. As noted by Justice Rothstein of the Supreme Court of Canada in the text’s foreword, “[h]is extensive expertise and experience in intellectual property law is made obvious by how he is able to reduce complex concepts to a coherent and readily understandable level” (page xxiv of Foreword). This separates Vaver’s text from many others in the field, as he approaches the subject in a manner that is more personable and easier to comprehend, balancing his insights and opinions on the state of the law with the key legal principles found in the subject areas.

The text opens with a Foreword written by Justice Marshall Rothstein of the Supreme Court of Canada, lauding the importance of intellectual property protection on the local and global stage, and praising Vaver’s discussions surrounding the current issues the subject faces today with the continual evolution of society. It is then divided into six chapters: an introduction outlining what IP is in Canada; a chapter each on copyright, patent and trade-mark law; one on management and enforcement of IP on both domestic and international levels; and, a conclusion outlining the current state of IP and how to address some of the current challenges facing the system in Canada and abroad. Vaver uses a mixture of primary and secondary sources throughout the text, referring to key jurisprudence and legislation that shapes the area of law, as well as texts and journal articles of his peers on the subject. Also, a list of further readings in both print and online form is provided for readers to learn about certain areas of the topic that may pique their interest. After the introductory chapter, a list of suggested blogs is made available by Vaver, thereby offering IP enthusiasts an avenue to receive up-to-date information on the state of the law on an almost instant basis. At the end of the text material is a glossary of key terms in the practice, showing once again that he has kept those new to the subject in mind in his draft. The book concludes with a Table of Cases and Index for reference to particular contents.

The introductory chapter tackles intellectual property as a whole in Canada. Vaver begins with an evolution of the state of the law in Canada, including mention of recent international influence on standardizing the subject globally. He then goes on to define the term “intellectual property”, and justifies why it is treated differently from other forms of property as well as why it is so integral to today’s society and economy. Vaver introduces common features prominent in all forms of IP (territoriality, overlapping rights, and registration), as well as certain elements specific to IP in Canada (optional marking, Constitutional and Freedom of Expression issues). The introduction provides an all encompassing overview of the subject that serves as a springboard to the dialogue surrounding the specific areas of IP discussed in the subsequent chapters.

The next three chapters go on to discuss the specific areas of copyright, patents and trade-marks, respectively. For each subject, the chapter explores what is entitled to protection, criteria for protection, duration, owner and user rights, and title. Each chapter involves a mix of foundational jurisprudence and recent developments in the common law on both a national and international level. Vaver aims to compare and contrast the approaches taken in Canadian common law to those seen in other areas of the world, allowing readers a better understanding of what level of freedom and protection Canada provides with respect to its international counterparts.  Throughout, there is an underlying theme of streamlining each area to meet the standards expressed by IP international bodies such as WIPO, and thereby eliminate major discrepancies between countries IP users face today in the global market.

The copyright section is the lengthiest chapter in the text at over 200 pages, as it covers a diverse range of protected media with differing rights and durations. At the end of the chapter, Vaver focuses on the differences between free use and commercial use at the end of the chapter, setting out the immunities available to free users for specific uses of the copyrighted material. He also maintains an eye to the future of copyright law in Canada given the developments of the WIPO Copyright Treaty (WPT) and WIPO Performances and Phonograms Treaty (WPPT), which were almost introduced in Bill C-32, the Copyright Modernization Act in June 2010. According to Vaver, even though Bill C-32 was not passed due to the fall of the Harper Government in March 2011, it “nevertheless indicates the direction of current government policy” (page 56).

The next chapter, patents, focuses on the rise of patents on an international level, with the US, Europe, Japan, Korea and China accounting for almost three-quarters of applications to the Patent Cooperation Treaty (PCT). Vaver goes on to state that in 2009, Canada granted a total of 200 patents to developing global players India and China, but he expects this to change in the future as both continue to invest more in new technology with the hope of joining their Western counterparts in prominence. Similar to the copyright section, he differentiates between free use of patents and paid use of patents through licensing, explaining why certain users are exempt from the restrictions of patent protection and why others are not.

The fourth chapter covers trade-marks, stating that they differ from other forms of IP, as they possess more of an ‘industrial’ element as oppose to ‘intellectual.’ Vaver also comments on the criticisms surrounding the Trade-marks Act and questions surrounding the constitutionality of certain provisions; he goes on to say that “trade-mark laws are not there to ‘hamper free trade,’ unreasonably restrict people’s rights of free expression, or just further and protect traders’ interests in their branding decisions and strategies, which benefit only them. The laws are there to further and protect the public interest in a healthy functioning marketplace, which benefits all” (page 428, emphasis added). He ends the chapter discussing user rights, making note of Canada’s reluctance to adopting a broad leeway to infringement exemption seen internationally, opting for the same limited range of permissible activities listed in the 1953 Act.

After discussing each area of IP, Professor Vaver once again discusses them in unison in the fifth chapter on Management and Enforcement. IP operates in a free market, with owners having the ability to assign, sell, license, or split up IP rights as they please. The system is set up to maintain a flexible structure to accommodate the evolution of society’s communication, development and production methods. However, the system is not without restrictions, as certain requirements must be met when dealing with transferability in the form of assignments or licences. In Canada, IP management is rather low-maintenance, with obligations to pay maintenance fees, renew periodically and record title in national IP registries being the main elements to consider; going abroad with IP is much more of a complex task, as management requirements vary globally, with complexity in international deals arising due to lack of cohesion. The chapter goes on to discuss enforcement of IP, outlining the role of the courts on both national and international grounds and what remedies right-holders are entitled to.

Vaver ends the text with, to his own admission, a conclusion that least differs from that of the first edition. He discusses the current state of IP law and why it exists in the form it does today. Then, he asserts some of the drawbacks of the system, stating that it is far too technical and complex, as “the results [IP laws] produce hardly square with the way many ordinary, law-abiding citizens think and act” (page 668). These technicalities are set out in the preceding pages, surrounding drafting standards, social control, first nations, acceptable uses, and those specific to the copyright, patent and trade-mark systems. The text ends with a section titled “Rethinking Intellectual Property,” where Vaver offers that a zero-budgeting system should be applied by governments to IP systems to examine how to best meet a balance between the users and owners of IP. He outlines a series of broad questions that must be answered to create a system of laws that has a “coherent moral centre that the public can comprehend and accept” (page 689). The conclusion shows that Canada’s IP system is far from perfect, and even though minor tweaks have made it better, starting from scratch and re-examining its desired goals will lead to a system that makes all those a part of it happy. Although this seems unrealistic and unlikely to happen, Vaver identifies that the problems do not lie in the peripheral elements, but the main structure itself.

As with its previous edition, Intellectual Property Law: Copyright, Patents, Trade-marks, 2nd ed. stands as a leading authority on intellectual property law in Canada. David Vaver offers a complete and concise overview of the topic that will be useful to anyone that works with or has an interest in IP law in language that eliminates the complexity and technicality seen in the subject. This current edition takes into account recent developments of the law in the last 15 years on both a national and international level, providing expanded analysis on topics previously covered, as well as discussion on new ones. The text exemplifies that, although the field of IP has no doubt improved through recent decisions, there is still a lot of opportunity for it to improve, offering insight into what future changes may lie ahead. The text already looks to be a key resource on the subject, as it has already been cited by Justice Rothstein in the May 2011 trade-marks decision of Masterpiece Inc. v. Alavida Lifestyles Inc. 2011 SCC 27, as reported in the IPilogue.  The second edition deserves the high praise, recognition and relevance its predecessor has in the IP community.